Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1887-05-05

DOVER, April 30.-The consideration of
the case of John A. Beeber, receiver Of the
Lycoming Insurance Company ys. The Wal
ton, Whann * Company, was resumed yes-
terday morning. Mr.. Massey spoke for
over an hour against the admission of the
commissioners certificate. This he said
was not sufficient declaration.
Mr.. Mccormick replied for the plaintiff
He said that there were three or four places
10 the declaration that averred that the
company was lawfully engaged In doing an
insurance business and he held that this
broad assertion covered the ground.
Mr.. Nlelds, for the sfenee, followed In
an argument of much force. The declur-
alton of the plaintiff sets out to say, re-
marked the speaker, that this ls the Lyeom-
lag Fire Insurance Company Of the state Of
Pennsylvanta there ts their charter offAred
IN evidence aud that charter nowhere
showed that this company had power to do
business outside of the borders of its own
state. They must stand strictly upon tina
pieadings as they are alleged, The proof
must be as stated and cannot go outside OF
that. Mr.. Nielda quoted numeous authori-
ties 10 support OF his position.
Mr.. Rldgeley followed. He said the plain
t.ffs must show that the right to do business
In this State must be clearly shown by the
plaintiff and stated In the narr the admis-
sion to do 80 was fatal presumption lwonld
not do. The fact must be absolutely stated
MFR. Fulton replied for the plaintiff, that
the want of license could not be taken ad-
vantage Of by defendant, but by the State
That want Of such license was no defence
Mr.. Mccormick said thatthey admitted that
1t was necessary for them to have license
that 1t was necessary to comply with all the
laws Of Delaware, but the point they con-
tended for was that their declaration was
sufficient.
Judge Grubb announced that the court
would render decision at 8 o'clock, and
at -. 80 court took a recess.
Immediately upon reassembling Judge
Grubb announced that ha would render the
decision OF the court, which was, In sub
stance, as follows: The objection of the de-
PENDANTS is that the man does not state that
the company was lawfully doing business
In this State, and, therefore, could not un-
dertake to prove that fact by offering that
certificate In evidence before the jury. This
seemed to be an important question. While
we regret that we must decide In the way
we are compelled to, we have reached o
conclusion which seems clear to US. In two
or three places the plaintiff alleges In
the narr that they were lawfully
engaged In business. On the 18th
Of July, 1880, application was made by the
defendants to be insured and that applica-
tion was accepted. The counts in that
declaration do In no place show any au-
thorlty In Delaware. The charter was In
evidence, assuming under that charter the
Lyooming companyis authorized to do bust
ness In Pennsylvania and also In Delaware.
This might have been the case, were 1t not
for our Insurance law, which made II un-
lawful for any foreign company to transact
business, unless authorized by our COM
missioner upon complying with the law;
that law negatived any comfy between the
AoNa ,nf hafy. fhns INIT As.s-
tion can do no act In Delaware, though au-
thorlzed by Pennsylvania. Wethink that this
corporation was bound to assert In its narr
ths facts. 1t was bound to take notice tEat
this company was licensed and they were
bound to show their right to do business
and the onus was put upon the plainun to
show the rlghtto do business by the statute
I'd therefore we feel that we must refuse to
admit thh testimony. To you, gentlemen
ON Pennsylvania, who have SO ably
argued this case, We say We have adhered
TO common law practice and In no case
have we shown any relaxation of that prac-
tice, In rotation to the rules and princlpal4
In vogue In this State for many years. In
Pennsylvania, where you no doubt have
more libaral rules of pleading, 1t may have
been different and that no doubt Is the
reason OF your mistake.
Mr.. Mccormick then moved to make
formal amendment to the narr In accord
his application upon the following sections
Of the Revised Code. Chapter III, section
IL, which allows amendments either In
form or substance In any case at issue, to
be made before Judgment, and section IA
Of the same chapter, which allows amend
ments during the trial when any variance
shall appear, provided that sLoh ameni-
ments shall NOT be material to the merits OF
the case and the opposite party Is not pre-
iudiced.
Mr.. Massey objected to the amendment
being allowed. He said that In his opinion
the amendment desired did not come under
the section quoted. This was not a variance
but an omission and therefore It was out of
section IA, and II il came under section IL
there would have been no necessity for the
following section. The practice of the
courts had been liberal In the matter of
amendments. Mr.. Massey cited several
cases when Judge Grubb ordered that the
court be given the authorities and Mr..
Massey went after them.
In the interim MIR. Ridgely spoke. He
said that there had only been two cases In
the "a years he had been at the bar that
trial.
Mr.. Massey returned, and cited a number
allowed, but only on variance.
MIR. Fulton replied that the statute on
amendments should be construed literally,
| that the statute was meant to be OF a
/ remedial nature, that under the constitution
the courts were bound to give everybody a
hearing upon the merits Of his case. In ali
the cases that have been cited the amend
ments have been allowed. The oircum-
stances OF these cases were somewhat SINH
lar. They were willing to stand upon sec
hon II, II the court deny this case and the
constitutional right Is absolutely denied,
the statutory and fundamental law grant
this right.
Mr.. .McComicklsupported Mr.. Fulton. He
said this Is question of practice and runs
from Edward ~. time. An amendment tc
a suit may be made ct any time before ludg.
ment. In Blackstone's time 1t would be ai
lowed section "a did not limit section IL
That section applied 10 all cases and seotior